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Home > MEA Bulletin > List of Guest Articles > Guest Article No. 103a
MEA Bulletin - Guest Article No. 103a - Monday, 1 November 2010
Multilateral Environmental Agreements: Legal Status of the Secretariats
(New York, NY: Cambridge University Press, 2010)
By Professor Bharat H. Desai1
Full Abstract

The process of ‘centralized legalization’ concerning sectoral environment problems has almost been institutionalized, especially during the past four decades. This multilateral law making modus operandi has worked in a piecemeal, ad hoc and sporadic manner. It has contributed to thickening the web of multilateral treaties as the most important source of international environmental law. There has been remarkable growth in the volume of multilateral environmental instruments in recent years. While it has resulted in gradual institutionalization of international environmental law, it has also led to increased fragmentation of the environmental agenda.

Multilateral Environmental Agreements (MEAs) have emerged as a unique technique containing flexibility, pragmatism, an in-built law making mechanism as well as a consensual approach to norm-setting. They have also been regarded as part of a broader trend of an “increasingly more complex web of international treaties, conventions, and agreements”. This research’s examination of MEAs also focuses on the legal relationship between Secretariats and their ‘Host Institutions’. It seeks to focus on select global conventions, such as Ramsar, WHC, CITES, CMS, Ozone, Basel, FCCC, CBD and CCD.

The study takes a closer view of the multilateral regulatory technique to address the sector-specific environmental problematique as well as legal status of the secretariats that ‘service’ the institutionalized intergovernmental process. The study has sought to examine, among others, the genesis, development and proliferation of MEAs, their role as a technique to regulate state behavior, in-built law making mechanisms and the process of ‘institutionalization’, their ad hoc and treaty-based status, issues of legal personality and the status of the secretariats of the MEAs. Some legal aspects of the relationship that flows from the location of MEA secretariats within an existing international institution have also been examined. A critical analysis reflects on the relevant issues in ‘relationship agreements’, their context as well as interpretation of commonly used language that triggers such a relationship. The study sought to examine an interpretation of the standard MEA clause on ‘providing a secretariat’, delegation of authority by the host institution to the head of the convention secretariat, possible conflict areas, host country agreements and working of ‘relationship agreements’.  A select number of MEAs have been taken as illustrations to examine these issues as well as to unravel the growing phenomenon of an existing international institution (such as UNEP, IUCN) providing a ‘servicing base’ for the MEAs. It triggers a chain of legal implications including location of the secretariats and their relationship with host countries as well as host institutions.

It covers documentation of primary instruments concerning ‘relationship agreements’ and ‘headquarters agreements’ for location of secretariats in ‘host countries’ as well as ‘host institutions’. These primary instruments are generally not available, including in scholarly publications. Therefore, their inclusion in this pioneering study provides an excellent reference tool for a host of actors, including sovereign states, MEA Secretariats as well as other international environmental institutions and international organizations. 

The practice of multilateral environmental regulation is an inescapable by-product of the age of multilateralism. It seeks to ensure that sovereign states adopt the spirit of multilateralism and come together on a common platform to address some of the global problematique. It is also largely based upon the premise that global problems need global solutions. In this context, there has been a transition in the attitude of the states from the era of common heritage to the common concerns of humankind. It is possible that the sheer identification of some of these common concerns could be coloured by promotion of the national interest of a state or a group of states, economic factors, technology control regimes, financial jugglery or just quest for engaging the key countries in the midst of their developmental journey. It is also noteworthy that in this age of multilateral regulation, the processes are also influenced by scientific reports.

One of the salient facets of MEAs is that they provide an institutionalised platform for sovereign states to engage themselves on a commonly identified problem. This platform in practice revolves around a regulatory framework enshrined in a sectoral environmental agreement. The mushrooming growth in the MEAs in the past four decades is a testimony to this process at work. Both the nature and scope of their regulatory techniques in the environmental field have seen significant transformation over the years. It is also buttressed by the quantum jump in the environmental concerns that initially started with the conservation agenda and shifted gear to larger marathon concerns (such as climate change, bio diversity and desertification) before culminating in of the phase out of highly toxic chemicals and wastes. At the subterranean level, the regulatory process has been fuelled by the consequences of a wild chase for economic miracles.  Thus, cumulatively, the marathon multilateral regulation process also provides a large sectoral chess board for science, economics, politics and law.

The treaty based institutional framework necessitates competence to give effect to the objectives of the Convention. The primary legal capacity that centrally lubricates the Convention emanates from the plenary body that is the COP/MOP. It is now generally accepted that each MEA carries a sui generis standing in international law that is separate from the contracting parties to it. In this parlance, MEAs being of ad hoc character are generally not regarded as IOs.  Notwithstanding this fact, the MEA is not devoid of the legal capacity to operate both on an international plane as well as to carry out specific functions within the domestic jurisdiction of the host state.

The sheer necessity of the MEA, through its secretariat, to give effect to the objectives leads to a chain of legal implications involving the host institution, host country and other legal entities. As the state practice as well as practice among the MEAs reveals, the secretariat generally possesses the standing –  duly under the authority of the COP – to act in its own authority.  There are, however some problems in this respect especially due to either a blinkered view of the host institution or the reluctance to allow the secretariat the status of a treaty body under international institutional law.

Barring few exceptional cases, most of the Convention secretariats in recent years have come to be located within an existing an international institution. Interestingly, this question of ‘location’ is unaffected by physical distance – sometimes even continents apart – of the Convention secretariats from their host institutions.  This phenomenon could be witnessed especially in the case of secretariat services being provided by UN Headquarters in New York, as well as the UN Environment Programme, in Nairobi.  In these cases, the actual location of the secretariats is decided on the basis of offers made by respective countries in terms of office building, financial support, staff benefits and other considerations. In view of this, the seat of the secretariat is not necessarily located at the headquarters of the host institution.

Thus as a part of the chain of legal events that start with a formal request by the COP to either UN or UNEP, the actual location of the secretariat is a separate event altogether. The decision of the host institution to provide secretariat support to the Convention is not at all influenced by the considerations of the actual place where the secretariat will come to be located. In this respect, the decision is taken on the basis of availability of best offers from the states parties to the Convention. It is important to note that location of the secretariat per se has no implications as regards the legal capacity of the secretariat. There is a standard practice among the UN entities for offering secretariat support to Convention secretariats as well as the legal capacity they possess as treaty bodies. In fact, the Office of the Legal Affairs of the United Nations (UNOLA) has taken a forthright position that the Convention secretariats are not subordinate to either the UN or to UNEP when they provide the secretariat services.

The issue of host institution arrangements assumes considerable importance in the life of a Convention Secretariat. It has been seen that there are wide variations in secretariat services provided by the host institutions. Notwithstanding the legalistic position of UNOLA, the host institutions try to assert their control over the secretariats. That is precisely why the nomenclature of providing a secretariat is subjected to close legal scrutiny. It is more so in view of a sort of contractual arrangement with the Convention through payment of, on average, 13 per cent overhead charges to the host institutions in lieu of the secretariat services. This arrangement often gets derailed and creates conflicting situations between the host institution and the Convention secretariat. It has been noticed whenever the COP or the Standing Committee does not keep tab of the situation and assert itself to ensure capability of the secretariat to realise the objectives of the Convention. In the absence of it, the relevant Convention secretariats have been subjected to sometimes quite humiliating treatment on even petty issues such as size of logo of the host institution or the domain name for the website of the secretariat. Of course, larger issues such as appointment of the head of the secretariat or legal capacity of the head of the secretariat to put his signature in his own capacity on the headquarters agreement of the secretariat have also been an issue of contention. Unfortunately, the headquarters agreements generally do not throw much light on some of these critical legal issues. As a result, a trend has grown among the secretariats to insist upon a proper relationship agreement with the respective host institution. The three such agreements so far put into place (Ramsar, CITES and CBD) indicate the preference to clearly delineate the respective roles of the host institution and the Convention secretariat. This arrangement could possibly prevent conflicts. However, it could work only if the arrangement is duly respected by the host institution. Alternatively, the COP or the Standing Committee that generally enters into the relationship agreement could assert its authority and seek clarifications from the host institution as regards the nature of the services they are providing to the Convention. In case of their assessment to the contrary, the COP could always consider alternatives for the host institution. The recent assessment carried out by both the Ramsar Bureau and the CITES secretariat are pointers in this direction.

It appears that the Convention secretariats have their unique position in the field of international institutional law. These ad hoc institutional arrangements do present a challenge in the field of international law to cope up with several issues concerning their actual working in the field as well as intra-institutional issues. The four different models of Convention secretariats seen in the field have their own strengths and weaknesses, and each presents its own distinct set of problems. These could be duly resolved through a spirit of solidarity and co-operation between the host institution and the COP. The Convention secretariat is sandwiched between these two institutions and has to grapple with a sense of dual loyalty to the two masters.

If the basic purpose of institutionalised international environmental co–operation is to be realised on a specific sectoral issue, the Convention secretariat will need to be adequately strengthened as well as provided with the necessary wherewithal and the legal capacity to work smoothly both within the domestic jurisdiction of the host country as well as on the international plane. This will necessitate concerted political resolve by the COP, understanding from the host institution, as well as jettisoning of institutional egos to attain the best results. In view of the fact that each sectoral convention is different and the nature of secretariat support that the host institution provides is also different, therefore, it will be in the fitness of things to put into place an appropriate relationship agreement for MEA secretariats (at present only Ramsar, CITES and CBD have them). Such written earmarking of respective turfs could help in addressing potential conflicts/difficulties in an institutionalized way, rather than through an ad-hoc fire-fighting approach.

It also seems incumbent on the part of the concerned host institutions to duly respect the legal sanctity of the treaty bodies rather than treat them merely as their subordinates or appendages. It goes without saying that only in the situation of harmonious relationship between the host institution and the convention secretariat, the contracting state parties could expect to realize in letter and spirit the basic objectives of the respective MEA.
1Chairman, Centre for International Legal Studies and Jawaharlal Nehru Chair in International Environmental Law at Jawaharlal Nehru University in New Delhi, India; e-mail: desai@mail.jnu.ac.in
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